Submitted: June 15, 2018
for Review of an Order of the Board of Immigration Appeals
KELLY, ARNOLD, and STRAS, Circuit Judges.
Koshe Burka challenges the denial of her untimely application
for asylum. Because we lack jurisdiction to review the
BIA's determination that Burka did not establish an
excuse for her late filing based on changed circumstances, we
dismiss her petition for review.
is a sixty-three-year-old woman who fears persecution by the
Ethiopian government because of her involvement in a local
women's group and her husband's status as a political
dissident. She arrived in the United States on a temporary
visa in 2008, but her husband remained in Ethiopia, where he
spent much of his time in hiding. Burka eventually lost all
contact with him.
2012, the Department of Homeland Security issued Burka a
Notice to Appear in removal proceedings. After conceding
removability, Burka applied for asylum, withholding of
removal, and relief under the Convention Against Torture. The
government asked the immigration judge to deny asylum under 8
U.S.C. § 1158(a)(2)(B), which required Burka to file her
application "within 1 year after [she] arriv[ed] in the
United States," a deadline she indisputably missed.
Burka responded that her husband's disappearance excused
her late filing because it was a "changed circumstance
which materially affect[ed her] eligibility for asylum."
See id. § 1158(a)(2)(D).
immigration judge denied Burka's asylum application under
the one-year statute of limitations but granted withholding
of removal. In denying asylum, the immigration judge reasoned
that "[Burka], her brother, and her husband had all been
detained and harmed by the government in the past" and
that her husband "was already trying to hide from the
government when [she] left Ethiopia. Thus, [Burka] did not
have new fears that might constitute a change in
circumstances, but rather her existing fears worsened."
The immigration judge then concluded, "[t]herefore,
these fears do not constitute a change in [Burka's]
circumstance[s] that would legally excuse her filing
dismissing Burka's appeal, the Board of Immigration
Appeals (the "BIA") relied on the immigration
judge's findings that Burka had "experienced past
persecution in Ethiopia, her husband and brother were also
harmed, and she was not prevented from filing an asylum
application within 1 year of her entry into the United
States." We review the BIA's decision as the
relevant final agency action, but because "the BIA
adopted the findings [and] reasoning of the [immigration
judge], we also review the [immigration judge's]
decision." Matul-Hernandez v. Holder, 685 F.3d
707, 710-11 (8th Cir. 2012) (citation omitted).
case is about our appellate jurisdiction over asylum cases.
The Immigration and Nationality Act provides that "[n]o
court shall have jurisdiction to review any determination of
the Attorney General under paragraph (2)," which
contains, as relevant here, the one-year statute of
limitations for asylum applications and its exceptions,
including the one for changed circumstances on which Burka
relies. 8 U.S.C. § 1158(a)(3). The categorical language
of this provision notwithstanding, we may still review
"constitutional claims or questions of law raised upon a
petition for review." Id. § 1252(a)(2)(D).
The issue, then, is whether this case presents a reviewable
constitutional claim or question of law or, alternatively,
whether Burka asks us to overturn a discretionary
determination, something that is beyond our jurisdiction to
answer to the jurisdictional question depends on what the
immigration judge and the BIA actually decided. The
immigration judge found that Burka feared persecution long
before her husband disappeared, because "she, her
brother, and her husband had all been detained and harmed by
the government in the past" and her husband "was
already trying to hide from the government when [she] left
Ethiopia." The BIA relied on these findings in
dismissing Burka's appeal. Though neither of these
decisions is a model of clarity, we understand them to be
saying that Burka already had strong preexisting fears of
persecution based on the government's ongoing harassment
of her husband. The disappearance of her husband, though
undoubtedly distressing, was just another incident in a
pattern of events that had already caused her to fear
persecution, too similar to what she had already experienced
to be a material change in circumstances, which is what was
required to "legally excuse her filing delay."
materiality determination of this type is unreviewable under
8 U.S.C. § 1158(a)(3). See Goromou v. Holder,
721 F.3d 569, 579-80 (8th Cir. 2013). Indeed, in
Cambara-Cambara v. Lynch, we held that we lacked
jurisdiction to review a similar changed-circumstances
argument based on an attack on the applicants' father.
837 F.3d 822, 825 (8th Cir. 2016). In our view, the
applicants' argument that the attack "provided
further evidence of the type of persecution [they] already
suffered" amounted to nothing more than a "quarrel
with the BIA's discretionary factual ...